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ALevel

Law 9084

Law Reform

Paper 1 & 2

Law Reform

Law Reform


The Need For An Independent Law Reform Body               

•  The legislation of England and Wales originates from a number of sources. This reality makes it vital to hold the legislation under scrutiny, to ensure that it is updated where appropriate, and to seek to maintain it in an open and controlled environment. 

•  There are several pressures on the manner in which our legislation is created, and the impetus for change will come from a variety of outlets.

•  Some of them may have greater influence than most, and in other cases, there might be conflicting factors in the direction the legislation is changed.

•  The Government of the day essentially has a crucial influence on what laws should be implemented, and the Government must set the plan for law change at any session of the Parliament. However, most of this would affect more socially oriented fields than 'pure law' reform. 

•  In fact, we have also shown in Dangerous Dogs Act 1991 that the Actions of Parliament will potentially contribute to further uncertainty and complexity of the legislation. 

•  This is especially valid when one Statute is intended to modify another such that the legislation is found in a sequence of Laws, both of which must be checked before the legislation can be uncovered.

•  Pressure groups provide motivation for the improvement of the legislation. When an issue has a especially high profile, Parliament can bend to popular sentiment and change the legislation. In the advisory process, the Law Commission may also seek the viewpoints of advocacy groups with a specific interest in the field of law under investigation.

•  Judges play a role in the restructuring of the legislation through a legal precedent. In certain cases, they might even produce a legal statute, as happened in R v R (1991), where the courts found that a man may be accused of assaulting his child.

•   In other instances, the courts that are dissatisfied with the judgment they have to make because of the plain language of the new Act of Parliament or because they are constrained by the previous precedent.

•  In this case, judges can, when offering their verdict, draw attention to the need for change.

•  Nevertheless, such forces will not contribute to the creation of our law in a coordinated and regulated manner.

•  The legislation has to be changed in order to respond to the increasing needs of society. This can include the introduction of new legislation or, in certain instances, the cancelation of old ones. Confused legislation often imposes prices. Simpler laws will reduce court costs.

History Of Law Reform Bodies

•  The need for an entity to monitor institutional legislation has been recognized for decades, with numerous Lord Chancellors (as far back as 1616) arguing for the creation of 'rule commissioners' to review the rules and hold them up to date. 

•  Up to the 19th century, there were no concerted attempts to change the constitution. There have been significant changes in the 19th century, with certain laws codifying aspects of statutory law and some codifying the common law in specific fields of contract law.

•  In the 20th century, the demand for an institution to be arranged with accountability for the reform of the law contributed to the formation of the Law Review Committee in 1934. This was defined as the 'foundation of modern law reform machinery,' but it existed only until the start of the Second World War in 1939. 

•  There was no lasting law enforcement agency during the war, from 1945 to 1952. It was not until 1965 that a full-time agency with a great deal of accountability came into being in the form of the Law Commission.

Law Reform Committee

•  It was founded in 1952 and was, in essence, the resurrection of the Pre-War Law Revision Committee. It is part-time and includes only specific fields of civil law, sometimes very limited and academic, which are appealed to by the Government. 

•  Its measures prompted the Parliament to enact such laws as the Occupiers' Responsibility Act 1957, the Legal Facts Act 1968 and the Latent Injury Act 1986. The Law Commission has advised this Committee on civil law issues, such as confidence regulation.

Criminal Law Revision Committee

•  It was founded in 1957 and was another part-time entity that proposed improvements to criminal law. The Committee sat on a monthly basis until 1986 and issued 18 papers.

•  Many of its smaller, more detailed proposals have become legislation, while its suggestions for significant policy reforms have also not been followed up due to lack of parliamentary resources. One of its key accomplishments was the automated codification of fraud and similar crimes in the 1968 Fraud Act.

The Law Commission

•  That is the primary entity for changing the legislation. It was created by the Law Commissions Act in 1965. It is a full-time agency that consisting of a president, a High Court Lawyer, that four other Law Commissioners. 

•  There are also support personnel to help with analysis and four congressional draftsmen to aid with the writing of the new bills. The Commission finds fields of legislation that are perceived to be in need of change

•  The task of the Law Commission is set out in paragraph 3 of the Law Commissions Act, which states:

•  Topics may be referred to it by the Lord Chancellor on behalf of the Government, or it may itself select areas in need of reform and seek governmental approval to draft a report on them.

•  The Law Commission works by researching the area of law that is thought to be in need of reform. It then publishes a consultation paper seeking views on possible reform.

•  The consultation paper will describe the current law, set out the problems and look at options for reform (often including explanations of the law in other countries).

The Way In Which The Law Commission Works

•  Subjects may be assigned to it by the Lord Chancellor on behalf of the Legislature, or they themselves may pick places in need of improvement and request the cabinet's permission to write a study on them.

•  The Law Commission is focused on an field of legislation that is considered to be in need of change. It then releases a briefing document requesting opinions on future changes. The consultation report would review the new laws, layout the issues and, discuss avenues for change (often containing examples of the rule of certain countries).

•  Regarding the feedback to the consultation report, the Commission would instead draw up meaningful change recommendations. This will be discussed in a paper which will also set out the work that contributed to the results.

•  Model legislation may also be added to the study in order to ensure that that is the same manner in which the proposed law will be written. Such a bill will, of example, go to Parliament and proceed through the requisite legislative steps if it is to become legislation.

Repeal And Consolidation


Repeal

•  There are also rather outdated and often ludicrous laws which are now in the statute book, but which have long ago ceased to have any meaning.

•  In order to get rid of this issue, the Law Commission is drafting a Statutory Law (Repeals) Bill to be enacted by Parliament. Through 2011, there were 18 Provisions under the Statute Law (Repeals). Nearly 2,500 out-of-date Parliament Amendments have been officially abolished. Moreover, portions of thousands of other Laws have since been abolished. The 19th Statute Law (Repeals) Bill was issued in 2012. 

•  This would result in the repeal of the 817 Laws in their entirety and the elimination of the obsolete clauses from the 50 other Measures. The argument that the statutes are out of date is demonstrated by the fact that the Acts mentioned for revocation include the 1696 Act to collect funds for the rebuilding of St. Paul's Cathedral after the Great Fire of 1666, and the four 19th century Acts to encourage the lighting of homes and streets with the use of gas lamps. 

•  This 'tide-up' of the statute book aims to render the legislation more available.

Consolidation

•  This is important since there are a variety of laws in certain fields of law, each of which lays down a particular portion of the overall legislation. The purpose of unification is to put together all the current laws in one Act.

•  This is another manner in which the legislation is rendered more available. The Law Commission creates approximately five Restructuring Bills per year, but it might be correct to claim that as soon as one region is merged, another region is divided by more Parliament Actions!

•  That was the situation for the punishment rule. The legislation was centralized in the jurisdiction of the Criminal Courts (Sentencing) Act 2000.

•  Within a few months, though, the Criminal Justice and Court Services Act 2000, which replaced some of the Collective penalties and even provided additional forms of punishment, modified the legislation again. Then, in 2003, the Criminal Reform Act of 2003 modified most of the punishment legislation again. Many changes have also been set in effect for juvenile prisoners and, in 2012, the Bill on Legal Assistance, Parole and Rehabilitation of Criminals made additional revisions to the Legislation on Parole.

Codification

•  Codification means putting all the laws regarding one issue together under one frame of rule. It was explicitly alluded to in paragraph 3 of the Law Commissions Act 1965 as part of the position of the Law Commission. Indeed, when the Law Commission was first set up in 1965, an extensive codification plan was launched, aimed at codifying family law, contract law, landlord and tenant regulations and the law of proof.

•  However, the Law Commission has slowly discarded these major codification schemes in favour of what could be called the 'building block' method. It focused on codifying specific parts of the legislation that could be applied to later.

•  Indeed, the entire idea of codification is the topic of controversy. Many in support argue that it allows the legislation more open and understandable. It also provides clarity and certainty: the legislation is found in one location, so then attorneys so citizens will quickly figure out what the legislation is. 

•  The contrary opinion is that a very specific code renders the legislation more rigid, but if the code is written out in general terms and without explanation, it would have to be understood by the courts and will thereby remain almost as ambiguous as the current common legislation.

Success Of The Law Commission

•  While the Law Commission has not accomplished the initial concept of codification, it has been effective in coping with minor fields of legislation. The progress rate of the Law Commission's recommendations was originally strong and the first 20 policy change projects were introduced for a period of two years. 

•  They contained the Unequal Contract Conditions Act 1977, the Terrorist Offences Act 1981, the Provision of Products and Services Act 1982 and the Occupiers' Responsibility Act 1984.

•  In reality, it had a strong success rate in the first ten years of its life, with 85 per cent of its policies being accepted by Parliament. Over the following ten years, though, just 50% of the planned laws have become statute. 

•  This lack of progress was attributed to a shortage of legislative resources and a strong lack of involvement on the part of Parliament in the development of professional legislation. 

•  The pace reached an all-time low in 1990, when only one of its proposals was approved by Parliament, and by 1992 there was a list of 36 bills that Parliament had yet to address.

•  Since then, the pace of implementation has increased, while results are still pending legislation. The annual report of the Law Commission for 2011–12 revealed that there were 15 proposals pending adoption. In comparison, around 1 in 6 of the Law Commission's findings was absolutely dismissed by the Government.

•  However, several significant changes have been introduced in recent years.

These are:

1.  The Land Registration Act 2002 – updated and modernized the system of land registry. This is critical as it affects anyone who buys and sells a home, a flat or some other land or building.

2.  The Fraud Act 2006, it made the law on fraud much more easier and organized.

3.  The Corporate Manslaughter and Corporate Homicide Act 2007, which legally held companies and entities responsible for the deaths incurred by their operating activities.  

Criminal Code

•  The main outstanding problem is the overhaul of criminal law. The Law Commission collaborated with three prominent scholars to develop the Penal Code, which was written in 1985. 

•  Part one addressed the basic concepts of criminal justice, while part two dealt with particular offenses which were divided into five chapters comprising similar offenses (for example, offenses against a person). The crimes protected by the Code is estimated to constitute between 90 and 95 per cent of the operation of the criminal courts.

•  This Application has been sent to Parliament but has not been accepted. In consideration of the volume of regulations protected by it, the Law Commission agreed to split it into manageable parts and to draw up draft bills for each of them. 

•  The first such legislation was on offences against a citizen and was written in 1993. This was meant to clarify some of the areas of law which have become quite confusing and which pose problems for the courts and the defendants.

•  In 1994, for example, the House of Lords spent two days debating what the words 'inflict' and 'cause' implied in the Offences Against the Person Act 1861. That kind of disagreement can be eliminated by enforcing the law.

•  However, Parliament was unable to find the time required to discuss the plan. Eventually, in 2008, the Law Commission declared that it would no longer attempt to codify federal legislation but would instead work on changing particular fields of legislation.

•  And as the Law Commission issued studies on narrower areas of legislation, the Government was reluctant to enforce them. In the 2012 report on legislation, the Lord Chancellor claimed that the Study on Involvement in Crime (2007) (Law Com 305) and the Study on Fraud and Attempts (2009) (Law Com 318) were not focus areas and will not be enforced during the lifespan of the new Parliament, which would continue until 2015.

Royal Commissions

•  In comparison to full-time agencies, special boards or Judicial Commissions are set up to study and comment on a particular field of law. They are discarded after their mission has been accomplished.

•  Such royal commissions were regularly used from 1945 to 1979, but from 1979 to 1990, when Margaret Thatcher was prime minister, none of them were created. There was a switch to the usage of these commissions in the 1990s.

•  Many Royal Commissions also contributed to major reforms in the law; the Royal Commission on Police Practice (the Phillips Commission) concluded in 1981 and several of its findings were adopted by the Police and Criminal Evidence Act of 1984. 

•  However, as the Pearson Commission on Personal Injuries stated in 1978, the Government will not necessarily rely on advice.

•  With the Runciman Commission (Royal Commission on Criminal Justice) reporting back in 1993, the Government put out several, but not all, of the recommendations. Throughout 1999, the Royal Report (Wakeham Report) examined whether the House of Lords should be changed. This has been largely introduced by the Legislature, but a complete restructuring of the House of Lords is still awaited.

Reviews By Judges

•  Apart from the actual Royal Commissions, courts can be asked to undertake an inquiry into the specific fields of law. Notable examples of this have been the Woolf Committee on Civil Justice, which led to significant policy changes of the courts system in 1999 and the review of the criminal justice system by Sir Robin Auld in 2001.

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